HHS Publishes Final Rules Providing Annual Inflation-Related Increases for Civil Money Penalties in Its Programs. Better Late than Never?

November 1, 2018

On October 11, 2018, the Department of Health and Human Services published final rules updating civil money penalty (CMP) amounts for civil penalties assessed on or after October 11, 2018 for violations of various HHS programs occurring on or after November 2, 2015. 83 Fed. Reg. 51369 (Oct. 11, 2018) (“Annual Civil Monetary Penalties Inflation Adjustment”), https://www.gpo.gov/fdsys/pkg/FR-2018-10-11/pdf/2018-22005.pdf. Affected programs include Medicare Advantage programs and nursing facilities. The highest per diem or per instance CMP for a nursing facility is now $21,393.

The annual updates are nine months late. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (§701 of the Bipartisan Budget Act of 2015, Pub. L. 114-74) requires that inflation updates to CMPs be posted each year by January 15.

By delaying publication of the updated CMPs for nine months, HHS violated the 2015 law and kept CMPs lower than they should have been under federal law.